Fluoride lawsuit survives legal challenge

VISTA —- A lawsuit against the city of Escondido and the state over plans to fluoridate the city’s water supply survived a legal challenge Thursday and appeared headed for a trial in April.

Superior Court Judge Jacqueline Stern tentatively denied requests from the city and the state to decide the case in their favor without having a trial.

Attorneys in the case have until Monday to ask to make oral arguments to Stern to try to persuade her to change her ruling before it becomes final. Stern would hear the arguments March 12 if they are requested.

Assistant City Attorney Jennifer McCain could not be reached for comment Thursday afternoon. Deputy Attorney General Karen Fried, who represents the state, was out of her office and unavailable for comment Thursday afternoon.

A group of people who live and work in Escondido filed the lawsuit in September 2001 against the city and the state, seeking a court order declaring the city’s fluoridation plan unconstitutional and prohibiting the city from going forward with its plans.

The group’s attorney, Kyle Nordrehaug, has said the legal dispute involves what substance the city will use to fluoridate the water. Nordrehaug has said the city plans to use an “industrial by-product”
that contains harmful chemicals as well as fluoride and that the state approval of the city’s plan was flawed.

“I don’t challenge, necessarily, that the government can put fluoride in my water, they just have to do it in a certain way with a certain substance,” Nordrehaug said Thursday. “We don’t say the government doesn’t have the power to do this. We’re saying, as with all actions of government power, it has to be done in a legal way.”

A divided City Council voted 3-2 in June 2001 to lift a 1999 city ban against putting chemicals, including fluoride, in city water to begin the process of fluoridating the city’s drinking water.

The Statewide Fluoridation Act required cities throughout California with more than 10,000 water service connections to fluoridate their water once money became available. The California Dental Association Research Fund offered to pay the initial costs to set up Escondido’s water treatment plant for water fluoridation. The city’s interim utilities manager said in December that the city will receive $300,000 from the fund once the plant is fluoridating water.

Local dentists and doctors around the state have called the addition of fluoride to the water an effective way to treat tooth decay in poorer children who might not have access to regular dental appointments.

Nordrehaug said the city needs to find out how much fluoride residents already are exposed to before adding it to the water to make sure residents are not overexposed. The city also has chosen hydrofluorosilic acid that contains arsenic and lead instead of sodium fluoride, the type used in toothpaste, or calcium fluoride, which occurs naturally, he said.

The lawsuit against the city and the state alleges the city’s fluoridation plan violates a state law that makes it a crime to add a “hazardous substance” to the “state’s water,” and alleges it violates the constitutional rights of residents, Stern wrote in her tentative ruling.

The city argued that the residents’ group could not establish that Escondido was overconcentrating the water supply with hydrofluorosilic acid and could not establish that the alleged overconcentration violated the state and federal constitutions.

However, the city did not address whether its use of hydrofluorosilic acid containing lead and arsenic violates any state or federal law, Stern wrote.

Stern also rejected the city’s argument that the lawsuit should not be heard until the fluoridation has begun. She wrote that the city already has selected a form of fluoride that contains arsenic and lead, that the state deemed the city’s plans “acceptable,” the city has built a facility to fluoridate the water, and a city official testified at a deposition in January that the fluoridation would begin within weeks of that testimony.

Stern also rejected an argument from the state that the residents who filed the lawsuit did not adequately “set forth a violation of a fundamental right.”

“Defendant (state) fails to address plaintiff’s allegations that at least one of the fundamental rights at issue is the right to be free from injury to health caused by fluoridation using allegedly contaminated HFSA (hydroflourosilic acid),” Stern wrote.